Design Defect’s “Consumer Expectations” Test; When Is It Unavailable?

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In Verrazono v. Gehl Company, et al., 50 Cal.App 5th 636, Plaintiff Gary Verrazono (“Plaintiff”) sued Defendant Gehl Company (“Defendant”) for negligence and strict product liability based on design defects of Defendant’s telehandler that Plaintiff was operating when it tipped over, causing Plaintiff to suffer multiple amputations.

The California Supreme Court has laid out two alternative, but not mutually exclusive, tests to establish a design defect: (1) the “ordinary consumer expectations” test and (2) the “risk benefit” test. (See Barker v. Lull Engineering (1978) 20 Cal.3d. 413, 430 (Barker); Soule v. General Motors Corp. (1994) 8 Cal.4th 548-560-567 (Soule).) The consumer expectations test is reserved for cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design. For example, a case regarding whether there were adequate grab bars in a bus for a person to hold onto when the bus took a sharp turn was a fact pattern where the jury could assess the safety aspects of the design by looking at photographs and making their own judgments. (See Campbell v. General Motors Corp. (1982) 32 Cal.3d 112 (Campbell).) In Campbell, the Court found that it was difficult to conceive what testimony any expert could have provided to help the jury decide if the design of the bus was adequate.

On the other hand, where a plaintiff’s theory of design defect seeks to examine the behavior of “obscure components under complex circumstances outside the ordinary experience of the consumer, the consumer expectation test is inapplicable; and defect may only be proved by resort to the risk-benefit analysis.” The risk benefit test is appropriate where “a complex product, even when it is being used as intended, may often cause injury in a way that does not engage its ordinary consumers’ reasonable minimum assumptions about safe performance. For example, the ordinary consumer of an automobile simply has ‘no idea’ how it should perform in all foreseeable situations, or how safe it should be made against all foreseeable hazards.” (Soule, supra, 8 Cal.4th at pp. 566–567, citing Barker, supra at p. 430.)

Here, Defendant’s telehandler is a rough terrain forklift that can go off of a paved surface and is equipped with a telescopic boom. The telehandler had a roll over protection system which included a steel cage around the operator, a two-point seat belt that met both OSHA and California regulations, and a frame level system that allowed the operator to level the forklift to match slopes up to ten degrees. The Defendant’s operator’s manual instructed operators to not exceed the ten degree slope limit, to not travel with the boom elevated, and that doing so could lead to instability and rollovers. Warnings on the telehandler issued similar instructions, including that operators were to wear the seatbelt, to inspect the ground for stability, and to level the frame before raising the boom. Other warning stickers told operators there was a machine rollover hazard, if the machine overturns, DO NOT jump, and that failure to heed could result in death or serious injury. Plaintiff was certified to operate the telehandler for eight years and had about one thousand hours of experience operating these products, prior to the incident.

On the day of the incident, Plaintiff was asked to move some equipment around a fenced in area of Sonoma Raceway and used the telehandler designed by Defendant. The telehandler was not Plaintiff’s preferred piece of equipment for this task, but he could not find a standard industrial forklift. This particular telehandler had the door to the cab removed, even though the product had been designed with a door. Plaintiff knew to wear his seatbelt, to not move the telehandler with the boom elevated, and to not operate on a slope of more than ten degrees. Nonetheless, the evidence admitted at trial showed that he did not wear his seatbelt and was operating the telehandler on more than a twenty-five degree slope with the boom elevated. The telehandler fell on its side, Plaintiff fell out of the cab and he was crushed underneath it.

Plaintiff’s theory of design defect was not that the telehandler was defective because it rolled over, but because Plaintiff was not restrained in the cab when it did rollover. Plaintiff’s theory was three-fold: (1) that the telehandler was defective because it did not have a nonremovable door, (2) the product did not have an interlock device that stopped the product from operating when the door was not closed or the seatbelt was not on, and (3) the product needed more than a two-point seat belt. The trial court instructed the jury only on the risk-benefit test and the jury returned a defense verdict.

Plaintiff appealed, arguing, among other things, that the trial court erred by not instructing the jury on both the consumer expectations test and the risk benefit test. The Court of Appeals affirmed the trial court’s decision, holding that Plaintiff had not presented evidence as to what a hypothetical reasonable telehandler user would have expected, and that in any event, this case was not one “in which the jury could properly determine, based solely on the objective attributes of the telehandler, whether it was defectively designed.” Plaintiff’s case was heavily reliant on expert testimony about the costs and benefits of the proposed alternatives and was devoid of any evidence to support a consumer expectations theory.

In denying Plaintiff’s appeal, the Court of Appeals stated that the applicability of the consumer expectations test is not based on complexity, as courts have held in other procedural postures (see Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545), but if the jury can employ its “own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented.” The Court found that if this were a different case, if the forklift had lacked a roll bar or cage and restraint device, it is quite plausible the ordinary consumer expectation test would have applied. The Court reasoned that any reasonable telehandler operator has a minimal safety expectation that the forklift will have features preventing the user from being squashed in a rollover, and the jury could have decided the case based solely on the observable attributes, or lack thereof, of the forklift. Instead, Plaintiff relied on technical alternatives, such as the interlock device, that the jury could not have reasonably evaluated without expert testimony. The experts who testified at trial disagreed about Plaintiff’s proposed alternatives and introduced issues of cost, effectiveness and the downstream effects of each. As the Court of Appeals held, this was not a case “where evidence about the objective features of the product alone were sufficient,” but rather required a “careful assessment of feasibility, practicality, risk and benefit.”

The Verrazono decision makes clear that technical design defect claims, such as the use of interlock devices, must be evaluated using the risk benefit test only. By doing so, the Court limits the avenues plaintiffs may take in attempting to prove a design defect when by choice, or circumstance, there are no design defect theories that a jury could evaluate based on their own observations and without expert testimony. When, as here, plaintiffs only allege or offer evidence concerning defects requiring expert testimony and the weighing of “feasibility, practicality, risk and benefit,” the consumers expectations test is unavailable and Plaintiffs are limited to the risk-benefit test.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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